Discovery Of an Expert’s Income From Testifying

The Appellate Division of the Superior Court of New Jersey has ruled that an expert should not be required to reveal details about his income from testifying as an expert witness.

In Gensollen v. Pareja, No. A-0401010T3, (N.J.A.D. 11/19/10), doctor who examined the plaintiff in a personal injury case admitted in a deposition that over 95% of his litigation work was for defendants. He also testified that testified that he conducted an average of eight to nine IMEs per week. He also testified that his two doctor orthopedic firm charges a fee of $895 per exam, but would impose additional charges depending on the extent of records and x-ray or MRI studies reviewed in a given case.

Plaintiff wanted more data to show bias, and the trial judge ordered defendant to produce, at his own cost, (a) documentation indicating the percentage of the firm’s findings in the past five (5) years that supported the premise that plaintiff suffered no type of permanent injury, (b) documentation indicating the percentage of the firm’s work that is defense related and the percentage of his work that is plaintiff related; and (c) documentation indicating what monies in the past five (5) years have been paid by defense attorneys to the firm for conducting medical exams.

In an effort to persuade the trial judge to reconsider the order, the expert revealed that

he had ‘performed approximately 1600-1800 independent medical examinations’ in the prior five years; [his partner] Dr. Friedenthal had performed the same number and ‘possibly even more’ in the prior five years; and to comply with the first paragraph of plaintiff’s request he would ‘have to locate and review each and every IME report authored by Dr. Friedenthal or me over the last five years,’ and then ‘actually compile the results of my post hac analysis into a new document that otherwise would not exist.’ He estimated ‘it would take . . . approximately fifteen minutes per IME report, or a total of between 800 and 900 hours, to actually perform the analysis and compilation’ called for by the first paragraph of plaintiff’s document request. He also explained the similar difficulties he would encounter if compelled to comply with the other two paragraphs of plaintiff’s document request.

The appellate court said that "party may also ask for an estimate of the extent to which the expert has rendered opinions for plaintiffs or defendants. And a party may obtain an approximation of the portion of professional time the expert devotes to providing services in litigation. In the vast majority of cases, truthful responses to those inquiries will likely provide all the information necessary for the party to argue that the expert possesses a positional bias and will be sufficient to terminate any further inquiry into the expert’s private business and financial matters." The court re-affirmed a prior holding that an expert’s business records, files and 1099s should only be provided under "the most unusual or compelling circumstances."

The court made clear what it had not decided, noting that "we have not been presented with a case in which the requesting party contends, with sufficient supporting proof, that the expert has failed to provide accurate estimates" of the time devoted to litigation matters. In this case the court decided that given the information shared by the expert the additional information would add little to the claim of bias and would be burdensome on the doctor.

The Pennsylvania Supreme Court wrote about this issue almost five years ago and I discussed it in this blog post.

The data shared by the defense expert in this case, particularly after he sought reconsideration of the trial judge’s ruling, gives the plaintiff a lot to work with. While all of us get frustrated by doctors hired by insurance companies to conduct so-called "independent medical exams," we must also recognize that some limit must be placed on discovery of non-party witnesses, even those who knowingly inject themselves into the litigation process by accepting employment as experts. At the end of the day, the data the plaintiff has is more than sufficient to demonstrate bias on the part of the defense expert and it is hard to say that the ruling of the appellate court was unfair or unwise.

Plaintiff’s lawyers who think otherwise might choose to remember that black letter law principle of "what is good for the goose is good for the gander."